*1 ORDER PER CURIAM July, Intervenors’ motion now, day this 17th
And order an emergency application appellant’s dismiss aas which we will treat reinstating supersedeas, automatic 1, 2001, reinstating March order dated motion vacate our the order the Com- supersedeas, granted; is automatic affirmed, case remanded and the is monwealth Court underlying issues on Court address merits.
Argued Sept. 2000. Aug. 2001. Decided *4 Neiderhiser, Greensburg, L. for Laich. Pamela S. Peck, for Greensburg,
John Com. FLAHERTY, ZAPPALA, CAPPY, C.J., Before and CASTILLE, SAYLOR, JJ. NIGRO and
OPINION NIGRO, Justice. trial,
Following jury A. Laich was found Appellant Scott degree killing for of two counts of first murder1 guilty Omatick, girlfriend, Krista and John Eric estranged Jill follow, we July Pistininzi on 1996. For the reasons for a Appellant’s judgmеnt of sentence remand reverse trial. new engaged had Omatick been together until years living up two and were approximately 28,1996, evening July killings. week before the On the 2502(a). §
1. Pa.C.S. *5 Appellant, who attempting had been to reconcile with Oma- tick, past apartment light drove her and noticed that a onwas a pay phone inside. He drove to and called and if asked declined, he could come to see telling over her. Omatick him going that she was tired and was back to sleep. Appellant to continued around apartment, drive the area of Omatick’s ultimately get to car deciding approach out the and the (N.T., 8/6/97, apartment to going “see what was on there.” аt 424.) car, Appellant got As out the he a .40 retrieved handgun. caliber Upon approaching apartment, the he heard what he to be Omatick and a man in engaged believed sexual At point, according relations. Appellant, “just he 425.) snapped.” (N.T., 8/6/97, way at He forced his into the Omatick, apartment fatally naked, shot who was as she proceeded came down the stairs. Appellant upstairs toward bedroom, through door, the shot fired a the bedroom kicked door, open fatally the shot Pistininzi. Appellant drove reported father’s home where he called 911 and crimes. the police transported state arrived and Appellant to the police subsequently barracks gave were statement detail- ing the crimes.2 trial, Appellant’s
At perform was not that defense he did rather, but killings, guilty that he was not first-degree Appellant murder. guilty only contended he was voluntary manslaughter pas- because he acted the heat of hearing sion after engaged what he believed to be Omatick sexual jury relations with another man. The nonetheless Appellant of first-degree convicted two counts of murder and subsequently was sentenced two life consecutive appeal, Superior sentences. On Appel- affirmed Court judgment lant’s of sentence. appeal
At issue in this the trial court whether erred admitting testimony White, of Connie a witness, regarding approxi- statements Omatick made to her only regarding Appellant’s apartment 2. The evidence at on actions 28-29, scene, July investigation police aside from the at the crime father, Appellant’s police statements to the and his and the state- shortly ments killings. contained in his 911 call after the During her testimo- shootings. prior week mately one following conversation that she had ny, stated White *6 Omatick: say [Appellant] that he
Q: [Omatick] And what did she to said her? her, if have if—that if he couldn’t
A: said that he said She man, kill that he would caught her another with ever them both. 553-54.) 8/7/97,
(N.T., at seeking to trial, a motion in limine filed Appellant Prior to with testimony regarding her conversation White’s exclude ruled that hearsay The trial court grounds. on Omatick hearsay statement testimony containing Omatick’s White’s to show Omatick’s it was relevant admissible because relationship Appellant. with regarding of mind her state Court, 71-72.) 8/4/97, In his to this (N.T., at brief admitting its in trial court abused discretion that the contends regarding of mind Omatick’s state testimony because White’s light of in Appellant was irrelevant of passion. in the he committed the crimes heat defense that agree. We admissibility of evidence concerning the
Questions
court,
this
of the trial
the sound discretion
are within
decision absent an
will not
the trial court’s
Court
reverse
Chmiel,
v.
558 Pa.
of that discretion. Commonwealth
abuse
1131,
denied,
478,
406,
(1999),
528
120
414
cert.
U.S.
738 A.2d
(2000).
970,
Hearsay is an out-of-court
Here, testimony hearsay White’s contained double be relayed Appellant’s cause it through out-of-court statement Appellant’s Omatick’s out-of-court statement. statement hearsay Omatick not barred rule because a defen dant’s out-of-court fall party statements within the admission Smith, exception hearsay to the rule. Commonwealth v. (1988). case, Pa. 540 A.2d issue this therefore, is whether Omatick’s statement satisfied White hearsay Both the trial Superior rule. court and the Court found that Omatick’s statements to White met state exception mind hearsay to the rule and were therefore admis sible.
Pursuant
the state
mind
exception,
where a declarant’s out-of-court statements demonstrate her
mind,
manner,
state
are
a natural
made
and are material
*7
relevant, they
and
pursuant
are admissible
to
exception.
Collins,
(1997)(cit
v.
46,
Commonwealth
550 Pa.
In the both instant the trial court and the Superior Court found that Omatick’s statement White satisfied the state of mind exception to the rule because it evi- denced of mind regarding relationship Omatick’s state her
27 find, however, the trial erred court Appellant. with We of testimony admitting because Omatick’s state White’s irrelevant regarding mind in this case. upon defense at trial was based
Appellant’s manslaughter, voluntary of a lesser theory guilty that he was murder. of the first-degree of than Murder degree homicide defined, in which is degree killing,” is “intentional first an deliberate, “willful, killing.” premeditated and part, as (d). killing 2502(a), However, § “if at the time of the Pa.C.S. and acting passion under intense is a sudden [the defendant] guilty resulting provocation[,]” from the defendant serious 2503(a). § In both voluntary manslaughter. Pa.C.S. of kill. crimes, the act with the the actor commits intent However, first-degree murder and between difference actor committed the voluntary manslaughter is whether the resulting from killings passion under a “sudden intense as: provocation.” “passion” This Court has defined serious degree intensity [A]nger provided they reach terror temporarily person the reason sufficient obscure Passion, charge man defining as used in a affected.... known slaughter any ... the mind means the emotions terror, anger, rendering rage, as sudden resentment reflection____ incapable mind of cool McCusker, 382, 292 289 n. v. 448 Pa. A.2d Commonwealth Colandro, (1972)(citing Pa. 80 A. (1911)). *8 Thornton, Pa. In Commonwealth v. 431 A.2d (1981), homicide state relevancy we the of a victim’s addressed of provocation. of mind as it to the defendant’s defense related defendant, Thornton, of first-degree was convicted mur- The of following shooting victim. Thornton der the admitted upon of killing the victim and relied theories self-defense and trial, that told provocation. At a witness testified the victim gun carried a because Thornton the witness that he “the Id. On Thorn- appeal, brothers were him.” at 250-51. after was ton asserted the victim’s inadmissible statement hearsay. argued response in the victim’s out-of-court met exception statement the state of mind and was relevant it because established that victim the was fearful of Thornton. Id. at 251. In rejecting the Common- contention, that, wealth’s we held “the victim’s of mind state was not а matter issue It case. was [Thornton’s] mind, victim, state of not that of the which was material to degree guilt, any, establish the of if of charge of criminal homicide.” Id.
Here, Thornton, as in what Omatick believed about the relationship state of her with Appellant was com pletely Appellant’s irrelevant degree guilt. Appellant killing Pistininzi, admitted Omatick and argued but that he only had provocation. done so with In light Appellant’s defense, it was Appellant’s state mind at the time killings that was relevant as to whether he committed the premeditation whether, crimes with claims, or as he he was acting with a passion “sudden and intense resulting from provocation.” serious Contrary to what courts lower conсluded, Omatick’s state of mind regarding Appellant simply given relevant Appellant’s Accordingly, defense.3 even if properly the trial court found that the state of mind exception met, had been it still erred in allowing testify White to to Omatick’s out-of-court statement regarding Appellant’s out-of-court statement because such testimony was not relevant to the case.4 only 3. Omatick's statement relevant when it is considered for its substantive truth —-that told her that he would kill her and However, anyone with accepting whom she was involved. her state- ment for its substantive hearsay truth removes it from the state of mind Thornton, exception, making 251(vic- it inadmissible. See 431 A.2d at tim’s declaration that only defendant was aftеr him relevant if truth; however, considered for its substantive when considered for its truth, substantive the declaration is inadmissible because it no longer any hearsay meets exception). contention, Contrary 4. to the dissent’s Omatick's out-of-court statement pursuant is not by wrongdoing hearsay admissible to the forfeiture 804(b)(6)("A exception. against See Pa.R.E. party statement offered to, engaged acquiesced wrongdoing that has that was intended did, procure witness.'') unavailability of the declarant as a It is language clear from the exception exception only of the applies that the
29 however, if that even White’s argues, The Commonwealth admitted, erroneously hearsay was testimony сontaining the Again, we beyond a doubt. was harmless reasonable the error disagree. that an error is harmless
It is established well that there beyond a reasonable doubt only if we are convinced that could have contrib possibility no the error is reasonable Ardestani, Pa. the verdict. uted to (1999). bears the The Commonwealth A.2d Id. This of the error. establishing burden of the harmlessness to the Commonwealth is able show burden is when satisfied (1) or the prejudice error not the defendant that: the did minimis; (2) erroneously or admitted was de the prejudice merely of other untainted evidence evidence was cumulative erroneously substantially was similar to the admitted which (3) evidence; properly admitted and unсontradicted the overwhelming prejudicial and guilt of so the evidence was that insignificant by comparison the error so the affect of not to the Id. at 556-57. error could contributed verdict. have testi The Commonwealth first contends that White’s mony regarding merely with Omatick was her conversation other, properly cumulative of admitted evidence of the deterio and Appellant.5 Omatick The rating between contention, however, is without merit. Since Commonwealth’s making party’s wrongdoing is the of when a done with intention testify See unavailable as a witness. 30B Charles Alan declarant to § Wright Arthur R. Miller, Federal Practice and Procedure &. ED.)(“Rule 804(b)(6) respond problem attempt an is (Interim intimidation[.]”) рarty’s wrongdoing for If a was another witness animosity, killing upon personal purpose, e.g., the declarant based exception apply. reliance on a line federal does dissent’s by wrongdoing exception, applying the forfeiture which is cases federal Pennsylvania’s exception, misplaced those since cases identical prevent wrongdoing was intended to a declarant from involved that applied exception testifying. in circumstances None the cases wrongdoing procure was not intended a declarant’s where the trial, unavailability as in case. such the instant Appel- presented that overheard 5. The Commonwealth evidence White аpart- moving arguing prior lant Omatick to his out of Omatick's ment, clothing apartment, Appellant’s that Omatick removed from apartment. Appellant actually moved out of the issue, it Appellant’s key state mind was at inquiry properly is whether there was admitted cumulative *10 Appellant’s of evidence statement Omatick that he would caught kill if he her with another man. The Common to, not pointed wealth has nor has our the review of record revealed, any such evidence. argues that properly Commonwealth also admit
ted and uncontradicted
overwhelmingly
evidence
established
Appellant’s guilt.6 In
of its
support
argument,
the Common
Thornton,
wealth cites to
erroneously
wherе we held that the
admitted
statement of the victim was harmless error.
decision, however,
The Thornton
is distinguishable from the
Thornton,
defendant, Thornton,
In
instant matter.
the
ar
gued
only
that he was
guilty
voluntary manslaughter be
cause he acted
and out of
provocation
killing
self-defense
after learning
the victim
that the victim
physically
had
at
tacked his mother and
with a
sister
baseball bat. We held
upon
overwhelming
that based
the
killing
evidence that the
intentional,
was
the improper admission of
victim’s state
the
ment that “the Thornton brothers were after him” was harm
Thornton,
less.
Specifically,
The facts the instant are distinguishable. case indicates Appellant evidence immediately, acted almost later, upon hours what hearing he believed to be Omatick Second, engaged in sexual relations. no there is conclusive Appellant evidence that knew believed that was in Omatick 6. The parked Commonwealth notes that his vehicle in a area, apаrtment up handgun, secluded walked to the with a loaded victims, scene, apartment, broke into the shot the fled did not help call for or assistance. engaged man or in sexual relations relationship with another Finally, evidence of approached apartment. when he only Appellant’s statements imme- came not from provocation diately following killings, but also from the observations police Appellant’s upon state father. Based both the distinctions, Thornton, factual as it relates to the issue these error, controlling harmless is not the instant case. record, beyond convinced reviewing After we are not Appellant’s erroneous admission of reasonable doubt jury’s could not to the verdict. statement have contributed Accordingly, Appellant’s judgment of is reversed and sentence jurisdiction relinquished. dissenting opinion.
Mr. Justice CAST1LLE files a participate Madame NEWMAN did not in the Justice *11 of this consideration decision case. Justice,
CASTILLE, Dissenting. admission, By own appellant forcibly broke into the Omatick, of his girlfriend, home former Krista Jill in the loaded, caliber, night, wielding middle of .40 the semi- inside, handgun. automatic shot Ms. Once Omatick at range through eye, point-blank killing the left her. He then bedroom, upstairs proceeded to the where he shot John Eric chest, Pistininzi killing once the him. majority appellant
The now awards a new trial it because statement, that Ms. believes Omatick’s out-of-court made one killing, before the purpose week admitted the limited revealing regarding deteriorating of her state of mind the relationship appellant, “completely state of her with irrel- so, states, majority This appellant evant.” the because killings, upon theory admitted the but defended that the “seriously provoked” victims him into a “sudden and intense passion” most, which him of voluntary rendered at guilty, 2503(a). manslaughter. § prov- See Pa.C.S. The so-called that, ocation of fact trespassing upon consisted the as he was porch Ms. night, Omatick’s the middle of the the armed appellant sounds which him heard convinced that Ms. Omatick inside having sexual relations Mr. Pistininzi were defense, majority con- the Appellant’s provocation
residence. cludes, respecting mind her ulti- state of rendered Omatick’s irrelevant. mately appellant fatal rele- view, unquestionably evidence was my disputed In the the first-degree charges and rebut vant both to the murder provocation killings from sudden the resulted defense Furthermore, I agreed even if than premeditation. rather irrelevant, I would majority that the evidence was with the circumstances in harmless under the find its admission to be for the kill- responsibility admitted appellant this case where was, provocation/heat passion defense ings and where the view, of law. my inadequate as a matter my that Ms. Omatick’s Finally, express I write to view for the truth should have been admissible rеlevant statement to a of mind subject and not state of the matter asserted limitation, it own criminal evidentiary appellant’s since was killing Ms. unavailability. By victim’s conduct that caused the Omatick, admission of any objection appellant waived of Evi- Pennsylvania Rules her out-of-court statement. (and Evidence), Federal Rules corresponding dence majority, at retrial ordered apply which will any hearsay objec- recognize party that a forfeits specifically of an unavailable witness tion to the out-of-court statement wit- where, here, own misconduct caused the party’s as Thus, retrial, the Commonwealth unavailability. upon ness’s statement as press for the admission will be free major- relevant, guilt. This fact renders the direct evidence *12 For all of grant particularly inappropriate. of a trial ity’s new reasons, respectfully I dissent. these revealing her A victim’s out-of-court statements homicide consistently with killer have been relationship view of her her in Nigro noted admissible this Court. As Justice deemed 411, 1040, Chandler, 401, 721 A.2d 554 Pa. Commonwealth v. (1998), ‘state are admissible “under the 1045 such statements because exception [the victim’s] of mind’ to the rule will, of ill relationship] [goes] presence to the opinion of [the malice, v. killing.” for the See also Commonwealth motive
33 261, (2000), 293-94, 276 cert. Fletcher, 266, 750 A.2d 561 Pa. (2000) 623, 148 denied, 1035, 121 L.Ed.2d 531 U.S. S.Ct. of mind (murder to his state statement was relevant victim’s and, therefore, admissi relationship with defendant regarding will, killing); ill malice or motive presence of prove ble to 219, 6, Puksar, 358, n. 740 A.2d 559 Pa. 79, denied, 829, (1999), 121 S.Ct. cert. 531 U.S. 225 n. 6 (victim’s not trust (2000) that he did statement L.Ed.2d involved and defendant were and that victim defendant exception prove of mind admissible state dispute .under killing); will, malice, or motive for Common of ill presence 58-60, 424-25 Collins, 703 A.2d 550 Pa. wealth v. denied, 142 L.Ed.2d (1997), 525 U.S. 119 S.Ct. cert. (statements exception (1998) state of mind relevant under motive). alia, inter prove, conclusion that majority’s I Initially, agree cannot with from Ms. Omatick’s claimed that noises appellant fact that and commit a him to break into her home apartment provoked perception of their the victim’s double homicide rendered fair contrary, To inference relationship irrelevant. told appellant had from Ms. statement arising Omatick’s man caught kill if her with another that he would her least, that, eyes at her broken relation- in Ms. Omatick’s was amicably. not troubled and did end ship appellant was turn, not fact, suggest that these were This was relevant but killings, appellant retrospect, claimed passion as heat long-simmering deep- by a killings that were motivated jealous re- arising appellant’s ill-will from malice and seated of his with Ms. accept termination fusal to such, directly rebutted the defense As the evidence Omatick. “sudden, acting out of a intense” appellant claim that killed them. provoked by the victims’ conduct when he passion addition, probative of the elements In this evidence was murder; thus, was entitled first-degree the Commonwealth proof irre- discharge it to its affirmative burden present I appellant forwarded. do see spective of the defense affir- to the Commonwealth’s how otherwise relevant evidence merely because the suddenly loses its relevance mative burden *13 34 forwards one
accused defense another. Because evidence probative of Ms. of mind was of Omatick’s state of the nature appellant, and that relationship was probative appellant’s of own state of mind at time of the killings, degree guilt the evidence was relevant to the of for that рroperly purpose. admitted agree majority if I could with the victim’s Even statement was inadmissible because her state of mind was irrelevant, join because, I award of could a new trial light trial, of appellant the contested issues this was not prejudiced by the admission of such evidence. The trial court separate explicitly jury instructed the on occasions as to two i.e., evidentiary purpose the limited of this that it evidence: only could consider Ms. Omatick’s statement as of evidence 594-595, jury, her state of mind. R.R. 761-762. of course, presumed limiting is to follow such instructions. See Gease, 165, 175, Pa. 696 A.2d denied, (1997), cert. 522 U.S. 118 S.Ct. 139 L.Ed.2d (1997). Thus, danger jury there was little that the would for any consider this evidence other reason than that instruct record, judge. very ed the trial On such a fact that the majority deems the evidence irrelevant should its admis make sion harmless.
Furthermore, I fail to see how the can evidence be said to prejudiced appellant provocation have since the of defense absurd, simply guilt first-degree the evidence of correspondingly overwhelming. murder was For relevant here, purposes passion voluntary verdict heat of man if, slaughter appropriate only would have been at the time of killing, acting the killer was “under a sudden and intense passion resulting provocation” by from serious the individual “[Wjhether 2503(a). § killed. 18 Pa.C.S. quantum certain provocation support voluntary is sufficient to defense manslaughter purely objective an standard.” Common Thornton, 260, 268, (1981). wealth v. 494 Pa. 431 A.2d adequate provocation ultimate test for “[T]he remains whether man, events, a reasonable confronted with this series be- incapable of mind was that his to the extent impassioned came Id. cool reflection.” *14 question no that was recognizes, there
Here,
majority
as the
only question
victims. The
killed both
intentionally
appellant
“seriously pro-
victims
whether the
in
was
raised
defense
that
way such
legally
in a
relevant
appellant
voked”
of a
product
been the
to have
be deemed
killings could
law,
view,
my
In
as a matter
passion.”
intense
“sudden and
any
of the
quality by
could
stretch
nothing that
victims did
alleged
“provoсa-
act of
The
legal provocation.
imagination as
sounds that
claim that he heard
appellant’s
from
arises
tion”
having
rela-
was
sexual
that Ms. Omatick
him to believe
led
course,
heard these
appellant
another man. Of
tions with
to Ms. Omatick’s
“sneaking up” uninvited
only after
sounds
from
eavesdropping
night,
of the
in the middle
residence
handgun.
wielding a loaded semi-automatic
porch,
while
only
Furthermore,
position
himself in that
appellant placed
did
phone
him over the
that she
had told
after Ms. Omatick
appellant
evening.
him
At the time
not
to see
that
wish
Omatick,
longer para-
no
the two were
up”
“snuck
on Ms.
any
living together; nor was there
longer
no
mours and were
betweеn them.
cognizable legal connection
light
most favorable to the
viewing
facts
Even
these
Indeed,
defense,
support
provocation
a
defense.
they do
appellant’s
from
conduct.
here arose
only provocation
into his own
a
where a defendant walks
This is not
case
bedroom,
only
surprised
to find his wife
example,
be
no
“right”
had
to be where he
with another man.
appel-
Nor did
“provoking” sounds.
was when he heard the
rather,
alleged provocation;
suddenly
upon
lant
stumble
stalking
night
of this
amounted
his actions
the middle
Furthermore,
appellant
fact
that
paramour.
former
heavily
him
handgun semi-automatic
brought
loaded
act,
provoking
upon” upon suggests, not that he “stumbled
confrontation,
seeking a
aggressively
but rather that he was
deadly
to handle with
force.
fully prepared
that
one
only
premeditation.
This smacks
perfectly
appellant
lawful act that
believed the victims
engaged
appellant’s
were
was none of
business. The ensu
ing
appellant
confrontation was
aggressively sought
one
out;
indeed,
apparently
it was one he
armed
for in
himself
anticipation thereof.
I would hold as a
that a
matter
law
person
reasonable
cannot be said to
“provoked”
have been
at
creation,
all
such circumstances of his own
much less
provoked to such an
capacity
extent
he lacked the
for cool
451, 466,
reflection.
v. Speight,
See Commonwealth
544 Pa.
317,
(1996),
denied,
677 A.2d
cert.
519 U.S.
117 S.Ct.
(1997) (no
967,
Given the evidence of the of calculated nature appellant’s night, conduct that and correspondingly the insuffi- supporting defense, cient evidence of passion the heat Ms. statements, only Omatick’s out-of-court admitted to show her mind, state of cannot possibly prejudiced appellant. have Accordingly, he is not to a entitled new trial.
Finally, relating appellant’s Ms. Omatick’s statement threat kill her should merely be deemed admissible not to show mind, her state of but also the truth of the matter asserted appellant’s guilt. admitted, as affirmative of evidence So Ms. that, Omatick’s statement would establish at or about the time
37
out,
if he
he told her that
could
appellant to move
she directed
man,
her,
her with another
caught
and if he ever
have
highly probative
be
of
both. The threat would
would kill them
heat of
would rebut
and
premeditation
deliberation
of
objection to admission
successful
passion defense. The
my view,
hearsay.
that was
In
its truth was
it
statement .for
objection by
however,
any
such
appellant waived
forfeited
unavailability.
Ms.
In-
being
of
Omatick’s
agent
himself
deed,
evidentiary
an
any
provides
other
absurd
approach
and reward for murder.
incentive
provides
Amendment
Clause
the Sixth
The Confrontation
enjoy
that,
the accused shall
prosecutions,
“in ail criminal
confronted
him.”
against
witnesses
right
...
to be
Texas,
400,
right, Pointer v.
380 U.S.
This is a fundamental
1068,
(1965),
404,
1065,
13
923
and is de-
L.Ed.2d
85 S.Ct.
signed
opportunity
defendant the
cross-
secure for the
Arsdall,
673, 678,
v. Van
examination. See Delaware
U.S.
(1986) (“[t]he
1431,
main
1435,
L.Ed.2d 638 and, thus, act may the Confrontation Clause to bar evidence pursuant to a settled might otherwise be admissible exception to the rule. Id. *16 long fact it has analysis to here is the
Relevant recognized been that a defendant can waive his Sixth Amend- and, hearsay objec- right fortiori, ment of confrontation tion, an statements to the admission of unavailable witness’s it was the own misconduct that rendered where defendant’s The notion that defendant’s the witness unavailable.1 recognized Supreme 1. States criminal defen- The United Court has right through waive to misconduct. See dants can their confrontation Allen, 337, 343, 1057, 1060-61, 397 25 v. U.S. 90 S.Ct. L.Ed.2d Illinois (defendant (1970) right right 353 his confrontation be waives 38 in procuring
misconduсt a witness’s right absence forfeits the justified confrontation has been as a “simple matter of equity” and “common sense:”
It is hard to imagine a form of misconduct more extreme than the murder of a potential Simple equity witness. supports a principle, forfeiture as does common sense attention to the need for fit incentives. The defendant who has removed an adverse witness is in a position weak complain losing about the chance to him. cross-examine And where a defendant has silenced a through witness threats, murder, use of violence or admission of the victim’s prior partially statements at least offsets perpetrator’s rewards for his misconduct. no We havе hesitation in finding, in league with all circuits to have considered the matter, that a wrongfully defendant who procures the ab- sence a witness or potential may witness not assert confrontation rights as to that witness. White, 903,
United
(D.C.Cir.1997).
States
116 F.3d
911
See
Dhinsa,
also
quoting States, 442, Diaz v. 458, 250, United 223 U.S. 32 S.Ct. (1912) omitted). L.Ed. 500 (intervening quotation
Federal Circuits other than the Second Circuit and the District of Columbia Circuit have likewise embraced the waiv- by See, er misconduct Houlihan, rule. e.g., United States v. (1st Cir.1996) (defendants F.3d 1278-79 con- waived rights frontation by murdering potential prevent witness to him from turning evidence); Rouco, state’s United States v. (11th Cir.1985) 765 F.2d (same); Steele v. Taylor, (6th Cir.1982) (defendant F.2d 1203-04 pimp who used influence and control prostitute over to induce refuse to present by repeatedly "conducting at trial himself in a manner so disorderly, disruptive, disrespectful of the court that his trial courtroom"); cannot be carried Snyder on with him in the v. Massachu
setts,
97, 106,
330, 332,
(1934)
("No
U.S.
54 S.Ct.
Appellant’s him, testifying against in court and appearing her from ed In example of misconduct. amounted to the ultimate extreme view, operates type is misconduct of which to waive my it confrontation/hearsay-based objection to rele- any or fоrfeit vant, appellant out-of-court victim made before statements the about the something deeply There is offensive killed her. object to admis- can another and then notion one murder that the ground victim’s statements on the witness sion already “unavailable” for confrontation at trial. victims; confrontation with the his .40 had his selected dispute. light as of his In caliber semi-automatic the arbiter circumstances, I hold that Ms. Omatick’s of these would was admissible for the truth the matter relevant statement asserted, merely and not as evidence of her state of mind. additional, Thus, ruling on this I would affirm the trial court’s ground. appellant That a windfall distinct received 804(b)(6) provides 2. Rule as follows: (b) Hearsay following Exceptions. The are not excluded
rule if the declarant is unavailable as a witness: (6) by Wrongdoing. against party Forfeiture A statement offered to, engaged wrongdoing acquiesced that was intended has did, unavailability procure declarant as a witness. 804(b)(6). Fed.REvid. certainly being purpose
statement admitted for a more narrow him does not entitle to relief. *18 matter, that,
Finally, I would note after trial in this this by concept of forfeiture of confrontation Court embraced Evidence, includ- wrongdoing adopted when it Rules of which ed verbatim the “Forfeiture exception to Wrongdoing” 804(b)(6). Thus, hearsay in Fed.R.Evid. the Penn- contained state, sylvania exception Rules of Evidence now as an to the rule, сonstitutional waiver doctrine described 804(b)(6) that, provides above. Pa.R.Evid. statement “[a] acquiesced against party engaged offered that has to, did, wrongdoing procure that was the unavail- intended ability of declarant as a witness” is not excludable on Rule, hearsay grounds. This which became effective October 1, 1998, majority will be at the retrial now available upon majority grants orders. That the statement which the broader, upon relief should be admissible retrial for a relevant purpose majority opin- the error in the further demonstrates reversing precipitously granting ion a new trial. Therefore, respectfully I dissent.
777A.2d 1069 Pennsylvania, Appellee, COMMONWEALTH RIZZUTO, Appellant. Paul Supreme Pennsylvania. Court
Argued Jan. 2001. Aug. 2001. Decided